Ohio Adm.Code 153:1 | Ohio Administrative Code 153:1 — Pre-Qualification and Pre-Design of Public Improvements | Ohio Facilities Construction Commission (Public Facilities Construction)

Chapter 153:1-1 Professional Design Services

Ohio Adm.Code 153:1-1-01 Announcement of professional design and design-build contracts and qualifications-based selection of professional design firms.

(A) Definitions: For the purpose of rules 153:1-1-01 and 153:1-1-02 of the Administrative Code:

(1) "Public exigency" shall have the meaning given it in section 123.10 of the Revised Code.

(2) The following terms shall have the meanings given them in section 153.65 of the Revised Code: "professional design firm," "professional design services," "qualifications," "design-build firm," "design-build services," and "criteria architect or engineer."

(3) "EDGE" means the "Encouraging Diversity, Growth, and Equity" business development program pursuant to section 122.922 of the Revised Code.

(4) "State" means any organized body, office, or agency established by the laws of this state for the exercise of any function of state government; or any institution of higher education as defined in section 3345.011 of the Revised Code. The "state" does not include the department of transportation or the Ohio turnpike commission when engaging professional design services for transportation projects.

(5) "Selection coordinator" means a person appointed by the state to coordinate the selection process.

(B) Pre-design phase:

(1) The state shall conduct a pre-design phase for each contract available for professional design services or design-build services, if applicable, in order to determine the feasibility of the project, availability of funding, the most appropriate method of project delivery, the scope of services required, the program of requirements if not included in the scope of services, the project schedule, the project budget, including the EDGE participation goal for the contract determined pursuant to rule 123:2-16-12 of the Administrative Code, and shall, if appropriate, conduct a site survey, environmental investigation, soil boring and testing, and other analyses to determine feasibility of the proposed site.

(2) Upon completion of the pre-design phase, the state shall announce the contract and request statements of qualifications in the following manner:

(a) The request for qualifications shall be published not less than fourteen days in advance of the last date that statements of qualifications may be accepted.

(b) The request for qualifications shall include a general description of the project, the project delivery method, a statement of the specific professional design services or design-build services required, a description of the qualifications required for the project, including the EDGE participation goal, and criteria by which submissions will be evaluated. The criteria shall include a point system, developed to encourage EDGE business participation, pursuant to division (B)(6) of section 122.922 of the Revised Code, if applicable.

(c) The request for qualifications shall indicate how qualified professional design firms or design-build firms may submit a statement of qualifications to be considered for a contract to perform the required services for the project.

(d) In addition to the requirements set forth in division (D) of section 153.67 of the Revised Code, the state may advertise electronically by using one or more of the following:

(i) Placing an advertisement on the website of the newspaper of general circulation in the county where the contract is to be performed;

(ii) Placing an advertisement on the state public notification website;

(iii) Placing an advertisement on its own official website or on other non-official websites, such as appropriate trade association websites.

(e) The request for qualifications shall identify a process for submitting written questions regarding the project.

(i) The selection coordinator shall direct interested firms to submit questions in writing and shall not answer questions outside the process identified in the request for qualifications.

(ii) The state shall answer any questions from interested firms in writing and make all questions and answers available to all interested firms prior to the last date for accepting statements of qualifications;

(iii) The state shall not disclose the name of the interested firm submitting a question when answering such question from an interested firm;

(f) The request for qualifications may include notice of a meeting or site visit where interested parties may learn more about the project and ask questions. The state shall prepare and publish written minutes of any such meeting or site visit. Additional information disclosed during the meeting or any site visit shall be published by the state in the same manner.

(3) Professional design services, including but not limited to criteria architect or engineer services, shall be acquired by the state through qualifications-based selection pursuant to paragraphs (C) to (I) of this rule or pursuant to rule 153:1-1-02 of the Administrative Code.

(4) Design-build services shall be acquired by the state through best value selection pursuant to rule 153:1-6-02 of the Administrative Code.

(1) The statements of qualifications shall be timely reviewed and evaluated by a evaluation committee, appointed by the state, using the criteria published in the request for qualifications. The composition of the committee shall not consist of enough members of a public body to constitute a quorum. As used in this rule, the term "public body" has the meaning defined in section 121.22 of the Revised Code.

(a) Proposing firms shall not contact members of the evaluation committee prior to announcement of the short list.

(b) The selection coordinator shall verify the completeness of the evaluators' scores and seek clarification only when it cannot determine the evaluator's intent.

(i) The selection coordinator shall not change an evaluator's score or replace the evaluator's judgment with its own.

(ii) If an evaluator awarded more points in any category than the maximum available in the criteria published in the request for qualifications, the selection coordinator shall revise the score for that category to the maximum available.

(2) At the conclusion of the evaluation process, the selection coordinator shall tally the scores and the state shall announce a short-list of not less than three firms that it determines are most qualified to perform the required services, unless the state determines that fewer than three qualified firms are available in accordance with division (A) of section 153.69 of the Revised Code.

(3) A scope clarification meeting may be conducted with the short-listed firms. The discussions shall be designed to further explore the scope and nature of the services required, the various technical approaches the firms may take toward the project, unique project requirements, the project schedule and the project budget. Depending on the nature of the project, the meeting may include a physical site visit. Any questions of the firms shall be answered at this meeting and shared with all participants.

(D) Interview phase:

(1) The state may appoint and convene an interview committee that shall review the technical proposals, if any, conduct interviews of each short-listed firm, and rank the short-listed firms. The state may appoint one or more individuals to serve as alternates. Individuals appointed to rank or serve as alternates shall attend each interview. Members of the evaluation committee may be members of the interview committee. The composition of the committee shall not consist of enough members of a public body to constitute a quorum. As used in this rule, the term "public body" has the meaning defined in section 121.22 of the Revised Code.

(2) The interview committee shall interview each of the short-listed firms and each member shall rank the firms from most to least qualified to provide the required services based on their interview and technical proposals, if any. The rankings of the interview committee members shall be combined to determine the overall ranking of the short-listed firms.

(3) If two or more firms receive equal ranking by the interview committee, an alternate shall rank the firms and the alternate's ranking shall be added to the previous rankings. If the firms remain tied, another alternate may rank in the same manner. When all alternates have been exhausted, the tied firm with the highest score in the evaluation phase shall receive the higher ranking.

(E) Technical proposal: The state may ask short-listed firms to supplement their statement of qualifications with a technical proposal in accordance with the final scope of services and project requirements as may have been clarified at the scope clarification meeting. Each short-listed firm requested to submit a technical proposal shall be informed of the date, time, and location for submitting its technical proposal.

(F) Contract negotiations: The state shall announce the firm determined to be the most qualified to perform the required services, request a fee proposal, and enter into contract negotiations with the selected firm in accordance with division (B) of section 153.69 of the Revised Code.

(G) Public records: Records that are maintained by the state during the selection process are public, to the extent permitted by sections 149.43 and 149.433 of the Revised Code, and shall be available for inspection.

(H) Nothing in this rule affects the state's right to accept or reject any or all professional design firms' statements of qualifications or technical proposals in whole or in part.

Last updated January 19, 2023 at 4:44 PM

History

Effective: January 19, 2023
Promulgated Under: 119.03

Ohio Adm.Code 153:1-1-02

(A) Professional design firms seeking to be prequalified to provide services to the state shall maintain a current statement of qualifications on file with the state.

(B) The prequalification requirements shall be based on the factors set forth in divisions (D)(1)(a), (D)(2), (D)(3), and (D)(4) of section 153.65 of the Revised Code. The criteria shall include a point system developed to encourage EDGE business participation pursuant to division (B)(6) of section 122.922 of the Revised Code, if applicable.

(C) For the purpose of awarding contracts to firms from a list of prequalified firms created pursuant to sections 153.68 and 153.691 of the Revised Code, the state shall select the most qualified firm as follows:

(1) The state may request technical proposals from not less than three firms, then rank and select the firm determined by the state to be most qualified, provided the firms were evaluated by the state prior to approval by the controlling board; or

(2) If the estimated initial fees are less than or equal to one hundred thousand dollars, the state may request a technical and fee proposal from one firm determined by the state to be most qualified, provided the firms were evaluated by the state prior to approval by the controlling board; or

(3) If the estimated initial fees are more than one hundred thousand dollars, the state may request technical proposals from and hold interviews with not less than three firms, and rank, select, and negotiate a contract with the firm determined by the state to be most qualified, provided the firms were evaluated by the state prior to approval by the controlling board.

(D) The state shall negotiate a contract with the selected firm in accordance with division (B) of section 153.69 of the Revised Code.

Last updated January 19, 2023 at 4:46 PM

History

Effective: January 19, 2023
Promulgated Under: 119.03

Ohio Adm.Code 153:1-6-02

(A) Definitions:

(1) "Best value" a selection process in which proposals contain both pricing and performance components, and award is based upon a combination of pricing and performance considerations to determine the offer deemed most advantageous and of the greatest value to the public authority.

(2) "Design services fee" means the compensation for services provided by the architect or engineer of record.

(3) "Preconstruction fee" means a combination of home office overhead and profit for services provided during the preconstruction phase of the project, as defined in the contract documents.

(4) "Design-build services fee" means a combination of home office overhead and profit for services provided during the construction phase of the project, as defined in the contract documents.

(5) "General conditions" means materials, services, and equipment necessary to perform the work but that are not incorporated into the project as defined in the contract documents.

(6) "Contingency" means an amount set aside by the design-build firm to pay for unexpected events, as defined in the contract documents.

(B) Two-step process: For each design-build project, a public authority shall engage in a two-step best value selection process consisting of a qualifications phase and a request for proposal phase. For each design-build project, it shall be the responsibility of a public authority to:

(1) Identify the qualifications criteria required for the project in accordance with paragraph (D)(1) of this rule and determine how it shall be evaluated in the qualifications phase of the selection;

(2) Identify the performance criteria and pricing criteria required for the project in accordance with paragraphs (E)(1) and (E)(2) of this rule and determine how they shall be evaluated and weighted in the request for proposal phase of the selection;

(3) Identify if there are any minimum or mandatory technical requirements for the project;

(4) Establish a process for maintaining records of decisions made at all stages of the selection process; and

(5) If appropriate, determine the amount of any stipend to be paid to the non-selected short-listed firms for a responsive pricing and technical proposal.

(C) One-step process: For projects valued at less than four million dollars, the public authority may require the design builder to submit a statement of qualifications in accordance with paragraph (B)(1) of this rule along with a pricing proposal in accordance with paragraph (B)(2) of this rule.

(1) The public authority shall provide each design builder who desires to submit a proposal under this division a pre-proposal meeting to explore the proposals further, in which the public authority shall provide the design builder with a description of the project, including the scope and nature of the proposed services and potential technical approaches.

(2) The public authority shall proceed with selection and ranking in accordance with paragraph (D) of this rule, based only on the qualifications submitted under that paragraph.

(3) Once the design builders have been short-listed in accordance with paragraph (D)(4) of this rule, the public authority shall proceed to evaluate the pricing proposals of each shortlisted design builder as described in paragraph (E) of this rule, continuing the selection process from there.

(D) Qualifications phase: Prior to the announcement of the qualifications phase, a public authority shall establish criteria and the scoring method for the evaluation of a firm's qualifications.

(1) Qualifications criteria: A public authority shall include the following as part of its qualifications criteria:

(a) Competence to perform the required design-build services as indicated by the technical training, education, and experience of the design-build firm's personnel and key consultants, especially the technical training, education, and experience of the employees and consultants of the design-build firm who would be assigned to perform the services, including the proposed architect or engineer of record;

(b) Ability of the firm in terms of workload and availability of qualified personnel, equipment, and facilities to perform the required professional design-build services competently and expeditiously, and experience working on similar types of projects;

(c) Past performance of the firm as reflected by the evaluation of previous clients with respect to such factors as control of costs, quality of work, dispute resolution, administration of subcontractors, and meeting deadlines and the past performance of the design-build firm's proposed architect or engineer of record;

(d) Compliance with sections 4703.182, 4703.332, and 4733.16 of the Revised Code, including the use of a licensed design professional for all design services;

(e) Financial responsibility including evidence of the capability to provide a surety bond in accordance with paragraph (A) of rule 153:1-4-02 of the Administrative Code;

(f) History of performance with meeting goals of any diversity and inclusion programs required by a public authority or by applicable law; and

(g) Other qualifications that are consistent with the scope and needs of the project including, but not limited to, knowledge of the local area and working relationships with local subcontractors and suppliers.

(a) During the qualifications phase, a public authority shall consult with the criteria architect or engineer, as defined in division (I) of section 153.65 of the Revised Code.

(b) A public authority may permit other independent advisors to support the evaluation committee or advise it on technical and pricing issues, but shall not permit an advisor to participate as a voting member of the committee.

(4) Short-listed firms: Once a public authority receives responses to the request for qualifications, the evaluation committee shall evaluate those responses and select no fewer than three firms which it considers most qualified to provide the required services, except that the evaluation committee shall select and rank fewer than three firms when it determines in writing that fewer than three qualified design-build firms are available. The firms selected and ranked in the qualifications phase shall be referred to as the "short-listed firms" in the request for proposal phase.

(E) Request for proposal phase:

(1) Pricing criteria: As part of its preparation for the pricing component of the request for proposal phase, a public authority shall establish pricing criteria which shall contain the following components:

(a) Design services fee;

(b) Preconstruction fee;

(d) General conditions;

(e) Contingency; and

(f) If applicable at the time proposals are requested, a guaranteed maximum price proposal as set forth in paragraph (G) of this rule.

(2) Performance criteria: As part of its preparation for the technical component of the proposal phase, a public authority shall establish performance criteria which may include an evaluation of a firm's proposed:

(a) Schedule;

(b) Approach to the work, including any anticipated self-performed work;

(d) Performance history;

(e) Approaches to performance specifications when used;

(f) Plan for anticipated procurement difficulties;

(g) Plan for meeting any goals set as part of any diversity and inclusion program required by the public authority or by applicable law; and

(h) Plan for additional considerations which may include technical design, technical approach, quality of proposed personnel and management plan.

(3) Request for pricing and technical proposal: Once the evaluation committee has selected the short-listed firms, a public authority shall release a request for pricing and technical proposals. A request for pricing and technical proposals shall include:

(a) A description of the project and project delivery;

(b) The design criteria produced by the criteria architect or engineer;

(d) A description of any preconstruction services;

(e) A description of the proposed design services;

(f) The form of the design-build services contract;

(g) A description of how the guaranteed maximum price for the project shall be determined, including the estimated level of design detail upon which the guaranteed maximum price shall be based, if not otherwise set forth in the construction management contract; and

(h) A request for a pricing proposal, including the estimated cost of construction for the project, for the purpose of calculating the fees proposed by a design-build firm.

(4) Pricing proposal: A design-build firm shall include at least the following in its pricing proposal:

(a) A list of key personnel and consultants for the project;

(b) Design concepts adhering to the design criteria produced by the criteria architect or engineer;

(d) A preliminary project schedule; and

(e) A pricing proposal which includes the pricing criteria components set forth in paragraphs (E)(1)(a) to (E)(1)(f) of this rule as established by the public authority.

(5) Technical proposal: A design-build firm shall include at least the following in its technical proposal:

(a) A project-specific plan;

(b) The identity of the proposed team;

(d) The performance criteria components set forth in paragraphs (E)(2)(a) to (E)(2)(h) of this rule as established by the public authority.

(6) Pre-proposal submission meetings: Prior to the submission of technical and pricing proposals, a public authority may meet individually with each short-listed firm to permit the firm to ask questions regarding the proposal requirements.

(F) Determination of best value:

(1) The evaluation committee shall interview each short-listed firm that submits a pricing and technical proposal. The purpose of the interview is to allow each short-listed firm an opportunity to clarify and respond to questions related to its proposal. The public authority may provide a list of questions to the short-listed firms in advance of each interview. The interview will not be scored or included in the scoring of the proposal. Should a public authority find any major discrepancy or irregularity in a pricing proposal, the public authority shall notify the affected firm in writing to address the concern at the interview and require the firm to provide its response in writing no later than the date of the interview.

(2) The evaluation committee shall evaluate each pricing and technical proposal utilizing the performance criteria and pricing criteria established by the public authority. The committee shall evaluate the performance criteria separately from pricing criteria and then combine the evaluations to reach a final evaluation.

(3) The committee shall rank the short-listed firms based on the final evaluation of each proposal to determine the best value.

(4) The public authority shall announce the firm determined to be the best value and shall enter into negotiations for a design-build contract in accordance with the requirements set forth in divisions (B), (C) and (D) of section 153.693 of the Revised Code.

(G) Guaranteed maximum price: If a public authority intends to seek a guaranteed maximum price (GMP) proposal from the short-listed firms, the following procedures shall be followed:

(1) The public authority shall define the guaranteed maximum price proposal requirements which may include allowances, unit prices, assumptions and clarifications, project schedule and scope of work to be self-performed;

(2) The GMP proposal shall be submitted to the public authority in a separate sealed package, identifying the firm's name and consistent with instructions provided by the public authority;

(3) The GMP proposal shall be reviewed independently from the evaluation committee and only shared after interviews are conducted and scoring of the performance criteria concludes;

(4) The independent review includes a comparative analysis of, and normalization of the GMP proposals received from the short-listed firms. In performing the analysis, the independent reivew may request the assistance of the criteria architect or engineer, or other independent advisors selected under paragraph (D)(2) of this rule.

(5) Each firm's GMP proposal shall be considered with the performance score given by the evaluation committee and the committee shall rank the short-listed firms based on the final evaluation of each short-listed firm's proposal to determine the best value.

(6) The public authority shall announce the firm determined to be the best value and enter into negotiations for a design-build contract in accordance with the requirements set forth in divisions (B), (C) and (D) of section 153.693 of the Revised Code.

(H) Public records: Records that are maintained by the public authority during the qualifications phase and proposal phase are public, to the extent permitted by sections 149.43 and 149.433 of the Revised Code, and shall be available for inspection only after execution of a contract with the selected firm.

(I) Stipend:

(1) A public authority may provide a stipend for a responsive pricing and technical proposal received from the non-selected short-listed firms. The decision to award a stipend is at the sole discretion of a public authority.

(2) The amount of the stipend shall be determined by a public authority and may be a lump sum amount or a percentage based on the level of effort anticipated to be expended to meet the proposal requirements.

(3) After the award of the design-build contract and upon the submission of complete and acceptable documentation to the public authority of all actual costs of preparing a pricing and technical proposal, the remaining eligible design-build firms as defined in the request for qualifications may receive payment up to the amount specified in paragraph (I)(2) of this rule, or the design-build firm's actual costs of preparing the proposal, whichever is less.

(J) Nothing in this rule affects a public authority's right to accept or reject any or all proposals in whole or in part.

(K) This rule does not apply to the department of transportation as the director of the department of transportation has specific statutory authority under Chapters 5517., 5525. and 5526. of the Revised Code to establish a design build program, criteria and selection process.

Last updated May 19, 2026 at 7:57 AM

History

Effective: May 19, 2026
Promulgated Under: 119.03

Ohio Adm.Code 153:1-1-03 Authority of a contracting authority in the award of qualification based selections.

A contracting authority shall adhere to the following procedures for the approval or award of qualification based selection contracts:

(A) The contracting authority shall not change the recommendation of an interview committee or prevent the award of contract for a qualification based selection unless the contracting authority, upon reviewing the selection, discovers that one or more of the following exists:

(1) The contract cannot be awarded under section 9.24 of the Revised Code because the person or firm has a finding for recovery issued by the auditor of state, and the finding for recovery is unresolved;

(2) The recommended firm is debarred under section 153.02 of the Revised Code;

(3) The recommended firm has been found by a court to be in default of a judgment or breach of settlement agreement;

(4) The recommended firm has violated section 3517.102 of the Revised Code by exceeding allowable campaign contributions;

(5) A correction of a clerical error made by the selection coordinator or interview committee changes the result of a selection;

(6) A conflict of interest exists between the evaluation committee or interview committee members and proposing firms.

(B) If the contracting authority determines that one or more of the reasons in paragraphs (A)(1) to (A)(5) of this rule exists, then the contracting authority shall reject the recommendation of the interview committee and approve award to the firm next determined to be the most qualified.

(C) If the contracting authority determines that paragraph (A)(6) of this rule exists, then the contracting authority shall reject the recommendation of the interview committee, establish a new evaluation and or interview committee and repeat the selection process.

(D) If the contracting authority determines that the evaluation committee or interview committee did not follow the appropriate processes established in rule 153:1-1-01 of the Administrative Code, or had inadequate documentation in support of the selection and is unable to cure the failure to consider adequate documentation, the contracting authority may reject the recommendation of the interview committee, establish a new evaluation and or interview committee and repeat the selection process.

(E) If the firm that was recommended by the interview committee is not awarded a contract due to reasons set forth in paragraphs (A)(1) to (A)(4) of this rule, the contracting authority shall notify the affected firm in writing and describe the reason(s) for rejection.

(1) Only the affected firm that was recommended by the interview committee but not awarded a contract by the contracting authority may protest the decision within five days and request a meeting seeking a final administrative decision. The reason(s) for the protest must be in writing. The contracting authority shall consider the objection within fifteen days of the notice. This process is not subject to Chapter 119. of the Revised Code.

(2) No award of contract shall be made final until the contracting authority either affirms or reverses the rejection, which is the final administrative decision.

(F) If the recommended firm withdraws its proposal, the contracting authority may approve award to the firm next determined to be the most qualified.

(G) The contracting authority reserves the right to waive minor errors that do not change the results of a selection.

(H) No section of this rule requires a contracting authority to award a contract to any firm if the owner decides to terminate the selection process and reject all proposals at any time for any reason.

Last updated October 17, 2023 at 2:42 PM

History

Effective: March 27, 2014
Promulgated Under: 119.03

Chapter 153:1-2 Document Forms

Ohio Adm.Code 153:1-2-01 Form of construction manager at risk contract documents.

(A) The state and state institutions of higher education as defined in section 3345.011 of the Revised Code, shall use the contract forms developed by the Ohio facilities construction commission and found on the following website under CM at Risk: ofcc.ohio.gov

(B) All other public authorities as defined in division (A)(1) of section 153.65 of the Revised Code, excluding the Ohio turnpike commission, shall use one of the following contract forms:

(1) The contract forms developed by the Ohio facilities construction commission and found on the following website ofcc.ohio.gov.

(2) Contract documents as published and licensed by the American institute of architects and found on the following website: http://www.aia.org/contractdocs/index.htm.

(3) Contract documents as published and licensed by ConsensusDOCS, LLC and found on the following website: www.consensusdocs.org.

(4) Contract documents as published and licensed by the construction management association of America and found on the following website: http://cmaanet.org/contracts.

(C) When using contract documents under paragraph (B) of this rule for a construction manager at risk project, a public authority shall incorporate applicable requirements of federal, state, or local law and may include supplemental terms and conditions or modify the contract documents to include project-specific terms and conditions.

(D) For all construction manager at risk projects, a public authority shall require the construction manager at risk to use the subcontract form developed by the Ohio facilities construction commission and found on the following website : ofcc.ohio.gov/.

Last updated January 19, 2023 at 4:45 PM

History

Effective: January 19, 2023
Promulgated Under: 119.03

Ohio Adm.Code 153:1-2-02 Form of design-build contract documents.

(B) All other public authorities as defined in division (A)(1) of section 153.65 of the Revised Code, excluding the Ohio turnpike commission, shall use one of the following contract forms:

(1) The contract forms developed by the Ohio facilities construction commission and found on the following website: ofcc.ohio.gov; or

(2) Contract documents as published and licensed by the American institute of architects and and found on the following website: aia.org.

(3) Contract documents as published and licensed by ConsensusDOCS, LLC and and found on the following website: www.consensusdocs.org.

(4) Contract documents as published and licensed by the design-build institute of America and found on the following website: http://dbia.org/Pages/Bookstore.aspx.

(5) Contract documents as published and licensed by the engineers joint contract documents committee and found on the following website: www.edjc.org/.

(C) When using contract documents under paragraph (B) of this rule for a design-build project, a public authority shall incorporate applicable requirements of federal, state, or local law and may include supplemental terms and conditions or modify the contract documents to include project-specific terms and conditions.

(D) For all design-build projects, a public authority shall require the design-build firm to use the subcontract form developed by the Ohio facilities construction commission and found on the following website under Misc: ofcc.ohio.gov.

(E) This rule does not apply to the department of transportation as the director of the department of transportation has specific statutory authority under Chapters 5517., 5525. and 5526. of the Revised Code to establish a design build program, criteria and selection process.

Last updated January 19, 2023 at 4:46 PM

History

Effective: January 19, 2023
Promulgated Under: 119.03

Chapter 153:1-3 Subcontract Form

Ohio Adm.Code 153:1-3-01 Definitions.

(A) For the purpose of this chapter, "construction manager at risk" shall have the same meaning given it in section 9.33 of the Revised Code.

(B) For the purpose of this chapter, "public authority" and "design-build firm" shall have the meanings given them in section 153.65 of the Revised Code, but this rule does not apply to the department of transportation as the director of the department of transportation has specific statutory authority under Chapters 5517., 5525. and 5526. of the Revised Code to establish a design build program, criteria and selection process.

(C) For the purpose of this chapter, "general contracting firm" shall have the same meaning given it in section 153.50 of the Revised Code.

(D) "Contingent payment clause" means language that makes the contractor's obligation to pay the subcontractor contingent upon the contractor's receipt of payment from the public authority for the subcontractor's work.

(E) "Contractor" means either a construction manager at risk, design-build firm, or general contracting firm.

(F) "Work" means the labor, materials, equipment, and services, individually or collectively, which are required by the contract documents to be performed or provided by the contractor for the project.

(G) "Contract documents" means collectively the documents that constitute the substance of the contract between the contractor and the public authority, including, but not limited to, all exhibits and addendum to that contract, drawings, specifications, general conditions, supplementary conditions, and any change orders.

(H) "Subcontractor" means any person or entity who undertakes to perform any part of the work on the project that is in privity of contract with a contractor.

(I) "Subcontract form" means the subcontract form developed by the Ohio facilities construction commission. The current version of the subcontract form shall be found on the following website under Misc: http://ofcc.ohio.gov/Documents/AgreementsandStandardRequirements.aspx.

Last updated October 17, 2023 at 2:42 PM

History

Effective: January 13, 2017
Promulgated Under: 119.03

Ohio Adm.Code 153:1-3-02 Form of subcontract.

(A) The contractor shall use the subcontract form when entering into any subcontract.

(1) A public authority may supplement the subcontract form to include project- specific requirements that do not conflict with the requirements set forth in this chapter.

(2) A contractor may supplement the subcontract form to include terms and conditions that do not conflict with the requirements set forth in this chapter.

(3) In the event of a conflict between the subcontract form and any part of a contract between the contractor and the subcontractor, the provision of the subcontract form prevails.

(4) Unless the public authority takes assignment of the subcontract under paragraph (B)(2) of this rule, the subcontractor will not have any contractual rights against the public authority.

(5) A contract between a contractor and subcontractor failing to include the subcontract form shall not relieve the contractor or subcontractor of their obligation to fully comply with all required provisions set forth in this chapter.

(6) The subcontract form shall require compliance with all applicable federal, state, and local law, including but not limited to sections 153.03, 1311.25 to 1311.32, 2305.31, 4113.61, 4113.62, and 4115.03 to 4115.21, and Chapters 4703. and 4733. of the Revised Code.

(B) The subcontract form shall address the following terms and conditions:

(1) Mutual rights and responsibilities: The subcontract form shall contain a provision requiring, to the extent that the contract between the public authority and the contractor applies to the subcontract work:

(a) The contractor and the subcontractor to be mutually bound by the terms of the contract documents;

(b) The contractor to assume toward the subcontractor the rights, remedies, obligations, and responsibilities that the public authority has and assumes toward the contractor;

(c) The subcontractor to assume toward the contractor the rights, remedies, obligations, and responsibilities that the contractor assumes toward the public authority; and

(d) The subcontractor to perform its portion of the work in accordance with the contract documents.

(2) Contingent assignment: The subcontract form shall contain a provision providing for the assignment of the subcontract to the public authority, at the public authority's option, upon the termination of the contractor's contract and written notice to the subcontractor.

(3) Intended third party beneficiary: The subcontract form shall contain a provision indicating that the public authority is an intended third party beneficiary of the subcontract, entitled to enforce any rights thereunder for its benefit.

(4) Insurance: The subcontract form shall contain a provision requiring the subcontractor to maintain insurance in accordance with the contract documents.

(5) Right to audit: The subcontract form shall contain a provision entitling the public authority and any agents designated by the public authority to have access to and the right to audit and the right to copy at the public authority's cost all of the subcontractor's books, records, contracts, correspondence, instructions, drawings, receipts, vouchers, purchase orders, and memoranda relating to the work for not less than three years following completion of the work consistent with section 149.43 of the Revised Code with regard to the public authority's obligation to maintain confidentiality of trade secrets.

(6) Indemnification: The subcontract form shall contain a provision requiring the subcontractor to indemnify, defend, and hold harmless, to the fullest extent permitted by law, the public authority, its consultants, and employees from all claims and expenses for bodily injury and property damage other than to the work itself that may arise from the performance of the subcontract work, but only to the extent caused by the negligence of the subcontractor or a person or entity for whom the subcontractor may be liable. The subcontract form shall not require a subcontractor to waive its immunity under the workers' compensation laws of this state from claims brought against the subcontractor by the subcontractor's employees.

(7) Prompt payment: The subcontract form shall contain a provision requiring the contractor, notwithstanding a contingent payment clause in a contract, to make payments to the subcontractor in accordance with applicable law, including section 4113.61 of the Revised Code, and that progress payments to the subcontractor for satisfactory performance of the subcontract work shall be made no later than ten days after receipt by the contractor of payment from the public authority for that subcontract work.

(8) Retainage: The subcontract form shall contain a provision requiring that retainage shall be at a rate equal to or less than the percentage retained from the contractor's payment by the public authority for the subcontract work.

(9) Warranty: The subcontract form shall contain a provision requiring that the subcontractor fully warrant, for the benefit of the public authority, that all materials and equipment shall be new unless otherwise specified, of good quality, in conformance with the contract documents and free from defective workmanship or materials.

(10) Non-waiver of lien or payment bond rights: The subcontract form and any supplemental terms to the contract between the contractor and subcontractor shall not include any terms or conditions that seek to prohibit a subcontractor from exercising its rights under Chapter 1311. of the Revised Code or under any contractor-provided payment bond.

(11) Nondiscrimination: The subcontract form shall contain a provision specifically requiring the subcontractor to comply with applicable law regarding equal employment opportunity, including section 153.59 of the Revised Code and, to the extent applicable, all executive orders issued by the governor of the state of Ohio.

(12) Dispute resolution: The subcontract form shall require the contract between the contractor and subcontractor to contain a dispute resolution provision that is comparable to the dispute resolution provision in the contract between the public authority and the contractor.

Last updated October 17, 2023 at 2:42 PM

History

Effective: December 26, 2011
Promulgated Under: 119.03

Chapter 153:1-4 Surety Bonds

Ohio Adm.Code 153:1-4-01 Definitions.

(A) For the purpose of these rules, the following terms shall have the meanings given them in section 9.33 of the Revised Code: "construction manager," "construction manager at risk," and "construction management services."

(B) For the purpose of this chapter, the following terms shall have the meanings given them in section 153.65 of the Revised Code: "public authority," "design-build contract," "design-build firm," "architect or engineer of record" and "design-build services."

(C) "Performance bond" means a written guaranty from a surety to a public authority providing financial assurance that the principal will perform the work in accordance with the contract documents.

(D) "Payment bond" means a written guaranty from a surety to a public authority providing financial assurance that the principal will make the required payments to subcontractors and material suppliers for all labor, materials, and other services related to the project.

(E) "Work" means the labor, materials, equipment, and services, individually or collectively, which are required by the contract documents to be performed or provided by the construction manager at risk or design-build firm for the project.

(F) "Contract sum" means the amount stipulated in the contract that is the total amount payable to the construction manager at risk or design-build firm for performance of the contract, including adjustments authorized by executed change orders. For purposes of these rules, contract sum does not include any compensation for architect or engineer of record services under a design-build contract.

Last updated October 17, 2023 at 2:42 PM

History

Effective: December 26, 2011
Promulgated Under: 119.03

Ohio Adm.Code 153:1-4-02 Type and amount of surety bonds.

(A) Prior to the execution of the contract, the construction manager at risk or design-build firm shall provide the public authority with separate performance and payment bonds. The penal sum of each bond shall equal one hundred per cent of the contract sum.

(B) If the contract sum increases at any time after the construction manager at risk or design-build firm provides surety bonds in accordance with paragraph (A) of this rule, the construction manager at risk or design-build firm shall cause the penal sum of each surety bond to be increased as necessary to maintain compliance with paragraph (A) of this rule. The delivery of written consent from the affected surety or sureties to the public authority by the construction manager at risk or design-build firm confirming the increased penal sums is a condition precedent to the public authority's obligation to pay the construction manager at risk or design-build firm for any portion of the work associated with the increase in the contract sum.

(C) If at any time prior to final payment to the construction manager at risk or the design-build firm, any surety providing a surety bond for the project (1) is adjudged bankrupt or has made a general assignment for the benefit of its creditors; (2) has liquidated all assets or has made a general assignment for the benefit of its creditors; (3) is placed in receivership; (4) otherwise petitions a state or federal court for protection from its creditors; or (5) allows its license to do business in Ohio to lapse or to be revoked, then the construction manager at risk or the design-build firm shall, within twenty-one days of any such action listed above, provide the public authority with new surety bonds in the form and amount described in the applicable subdivision of these rules. The delivery to the public authority by the construction manager at risk or design-build firm of replacement surety bonds is a condition precedent to the public authority's obligation to make any payment to the construction manager at risk or design-build firm.

(D) The public authority shall require the construction manager at risk or the design-build firm to submit a separate performance bond and a separate payment bond using the "Performance Bond Form" and "Payment Bond Form" found on the website of the Ohio facilities construction commission under either CM at Risk or Design-Build: http://ofcc.ohio.gov/Documents/AgreementsandStandardRequirements.aspx. Any bond submitted under this rule shall name as obligee the public authority or the state, as applicable.

Last updated October 17, 2023 at 2:43 PM

History

Effective: January 13, 2017
Promulgated Under: 119.03

Chapter 153:1-5 Advertising for Construction Manager

Ohio Adm.Code 153:1-5-01 Electronic Advertising.

(A) For the purposes of this chapter, the following terms shall have the meaning given them in section 9.33 of the Revised Code: construction manager, construction manager at risk, and public authority.

(B) This rule applies only to a construction manager or a construction manager at risk project.

(C) In addition to the requirements set forth in section 9.331 of the Revised Code, a public authority planning to employ construction manager or construction manager at risk services may advertise electronically by using one or more of the following:

(1) Placing an advertisement on the website of the newspaper of general circulation in the county where the contract is to be performed;

(2) Placing an advertisement on the state public notification website;

(3) Placing an advertisement on its own official website or on other non-official websites, such as appropriate trade association websites.

(D) A public authority may utilize reasonable and available means to electronically advertise to members of diversity and inclusion programs required by the public authority or by applicable law.

(E) The content of an electronic advertisement may indicate where an interested party may find a full description of the project and information on how to submit a proposal.

Last updated October 17, 2023 at 2:43 PM

History

Effective: February 2, 2012
Promulgated Under: 119.03

Chapter 153:1-6 Best Value Selection

Ohio Adm.Code 153:1-6-01 Best value selection of a construction manager at risk.

(A) Definitions:

(1) "Best value" means a selection process in which proposals contain both pricing and performance components, and award is based upon a combination of pricing and performance considerations to determine the offer deemed most advantageous and of the greatest value to the public authority.

(2) "Preconstruction fee" means a combination of home office overhead and profit for services provided during the preconstruction phase of the project, as defined in the contract documents.

(3) "Construction fee" means a combination of home office overhead and profit for services provided during the construction phase of the project, as defined in the contract documents.

(4) "At-risk fee" means the portion of the construction fee attributable to the risk the construction manager at risk assumes by agreeing to be responsible for the performance of the work. The difference between the construction fee and the at-risk fee is the fee the construction manager at risk would charge to provide construction phase services as a construction manager as defined under division (A) of section 9.33 of the Revised Code.

(5) "General conditions" means materials, services, and equipment necessary to perform the work but that are not incorporated into the project as defined in the contract documents.

(6) "Contingency" means an amount set aside by the construction manager at risk firm to pay for unexpected events, as defined in the contract documents.

(B) Two-step process: For each construction manager at risk project, a public authority shall engage in a two-step best value selection process consisting of a qualifications phase and a request for proposal phase. For each construction manager at risk project, it shall be the responsibility of a public authority to:

(1) Identify the qualifications criteria required for the project in accordance with paragraph (D)(1) of this rule and determine how the qualifications criteria shall be evaluated in the qualifications phase of the selection;

(3) Identify if there are any minimum or mandatory technical requirements for the project; and

(4) Establish a process for maintaining records of decisions made at all stages of the selection process.

(C) One-step process: For projects valued at less than four million dollars, the public authority may require the construction manager at risk to submit a statement of qualifications in accordance with paragraph (B)(1) of this rule along with a pricing proposal in accordance with paragraph (B)(2) of this rule.

(1) The public authority shall provide each manager at risk who desires to submit a proposal under this division a pre-proposal meeting to explore the proposals further, in which the public authority shall provide the manager at risk with a description of the project, including the scope and nature of the proposed services and potential technical approaches.

(2) The public authority shall proceed with selection and ranking in accordance with paragraph (D) of this rule, based only on the qualifications submitted under that paragraph.

(3) Once the managers at risk have been short-listed in accordance with paragraph (D)(4) of this rule, the public authority shall proceed to evaluate the pricing proposals of each shortlisted manager at risk as described in paragraph (E) of this rule, continuing the selection process from there.

(D) Qualifications phase: Prior to the announcement of the qualifications phase, a public authority shall establish criteria and the scoring method for the evaluation of a firm's qualifications.

(1) A public authority shall include the following as part of its qualifications criteria:

(a) Competence to perform the required management services as indicated by the technical training, education, and experience of the construction manager at risk's personnel, especially the technical training, education, and experience of the construction manager at risk's employees who would be assigned to perform the services;

(b) Ability in terms of workload and the availability of qualified personnel, equipment, and facilities to perform the required management services competently and expeditiously, and experience working on similar types of projects;

(c) Past performance as reflected by the evaluation of previous clients with respect to factors such as control of costs, quality of work, dispute resolution, administration of subcontractors, and meeting of deadlines;

(d) Financial responsibility including evidence of the capability to provide a surety bond in accordance with paragraph (A) of rule 153:1-4-02 of the Administrative Code;

(e) History of performance with meeting goals of any diversity and inclusion programs required by a public authority or by applicable law; and

(f) Other qualifications that are consistent with the scope and needs of the project including, but not limited to, knowledge of the local area and working relationships with local subcontractors and suppliers.

(2) Evaluation committee: A public authority shall convene an evaluation committee. The composition of the committee is at the discretion of the public authority; however, the composition of the committee shall not consist of enough members of a public body to constitute a quorum. As used in this rule, the term "public body" has the meaning defined in section 121.22 of the Revised Code. A public authority may permit the project's professional design firm or other independent advisors to support the evaluation committee or advise it on technical and pricing issues, but shall not permit participation as a voting member of the committee.

(3) Release of request for qualifications: Once qualifications criteria are established and the evaluation committee has been selected, a public authority shall prepare and release the request for qualifications and any clarifications that may be made to it. A public authority may electronically announce all available construction manager at risk contract opportunities in accordance with rule 153:1-5-01 of the Administrative Code. A public authority shall answer any questions from interested firms in writing and make all questions and answers available to all interested firms.

(4) Short-listed firms: Once the public authority receives responses to the request for qualifications, the evaluation committee shall evaluate those responses and select no fewer than three firms which it considers most qualified to provide the required services, except that the evaluation committee shall select and rank fewer than three firms when it determines in writing that fewer than three qualified construction managers at risk are available. The firms selected and ranked in the qualifications phase shall be referred to as the "short-listed firms" in the request for proposal phase.

(E) Request for proposal phase:

(a) Preconstruction fee;

(b) Construction fee;

(d) General conditions;

(e) Contingency; and

(f) If applicable at the time proposals are requested, a guaranteed maximum price proposal as set forth in paragraph (G) of this rule.

(a) Schedule;

(b) Approach to the work, including any anticipated self-performed work;

(d) Performance history;

(e) Approaches to performance specifications when used;

(f) Plan for anticipated procurement difficulties;

(g) Plan for meeting any goals set as part of any diversity and inclusion program required by the public authority or by applicable law; and

(h) Plan for additional considerations which may include technical design, technical approach, quality of proposed personnel and management plan.

(a) A description of the project, including a statement of available design detail;

(b) A description of any preconstruction services;

(d) A description of how the guaranteed maximum price for the project shall be determined, including the estimated level of design detail upon which the guaranteed maximum price shall be based, if not otherwise set forth in the construction management contract; and

(e) A request for a pricing proposal, including the estimated cost of construction for the project, for the purpose of calculating the fees proposed by a construction manager at risk.

(4) Pricing proposal: A construction manager at risk shall include at least the following in its pricing proposal:

(a) A list of key personnel for the project;

(b) A statement of the general conditions and contingency; and

(c) A fee proposal, which includes the pricing criteria components set forth in paragraphs (E)(1)(a) to (E)(1)(c) and (E)(1)(f) of this rule as established by the public authority.

(5) Technical proposal: A construction manager at risk shall include at least the following in its technical proposal:

(a) A project-specific plan;

(b) The identity of the proposed team;

(d) The performance criteria components set forth in paragraphs (E)(2)(a) to (E)(2)(h) of this rule as established by the public authority.

(F) Determination of best value:

(3) The committee shall rank the short-listed firms based on the final evaluation of each proposal to determine the best value.

(4) The public authority shall announce the firm determined to be the best value and shall enter into negotiations for a construction management contract in accordance with the requirements set forth in divisions (F), (G) and (H) of section 9.334 of the Revised Code.

(G) Guaranteed maximum price: If a public authority intends to seek a guaranteed maximum price (GMP) proposal from the short-listed firms as part of the pricing criteria, the following procedures shall be followed:

(1) The public authority shall define the guaranteed maximum price proposal requirements which may include total cost of the work, allowances, unit prices, assumptions and clarifications, project schedule and scope of work to be self-performed.

(2) The short-listed firm shall submit its GMP proposal to the public authority in a separate sealed package, identifying the firm's name and consistent with instructions provided by the public authority.

(3) The GMP proposal shall be reviewed independtly from the evaluation committee and only shared after the interviews are conducted and soring of the performance criteria concludes under paragraph (F)(1) of this rule and scoring of the performance and pricing criteria.

(4) The evaluation committee shall conduct a comparative analysis of, and normalize, the GMP proposals received from the short-listed firms. In performing the analysis, the committee may request the assistance of the project's professional design firm or other independent advisors selected under paragraph (D)(2) of this rule.

(6) The public authority shall announce the firm determined to be the best value and shall enter into negotiations for a construction manager at risk contract in accordance with the requirements set forth in divisions (F), (G) and (H) of section 9.334 of the Revised Code.

(I) Nothing in this rule affects a public authority's right to accept or reject any or all proposals in whole or in part.

Last updated May 19, 2026 at 7:57 AM

History

Effective: May 19, 2026
Promulgated Under: 119.03

Ohio Adm.Code 153:1-4-02

Last updated October 17, 2023 at 2:43 PM

History

Effective: January 13, 2017
Promulgated Under: 119.03

Ohio Adm.Code 153:1-5-01

(B) This rule applies only to a construction manager or a construction manager at risk project.

(1) Placing an advertisement on the website of the newspaper of general circulation in the county where the contract is to be performed;

(2) Placing an advertisement on the state public notification website;

(3) Placing an advertisement on its own official website or on other non-official websites, such as appropriate trade association websites.

(D) A public authority may utilize reasonable and available means to electronically advertise to members of diversity and inclusion programs required by the public authority or by applicable law.

(E) The content of an electronic advertisement may indicate where an interested party may find a full description of the project and information on how to submit a proposal.

Last updated October 17, 2023 at 2:43 PM

History

Effective: February 2, 2012
Promulgated Under: 119.03

Ohio Adm.Code 153:1-6-02 Best value selection of a design-build firm.